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Was the condemnation of George of Clarence a significant example of the abuse of attainder?….

The following is an extract from ‘His Grace the Steward and the Trial of Peers’, by L.W. Vernon Harcourt.

“The proceedings in the parliament of 1477 against George, Duke of Clarence, afford us with a significant example of the abuse of attainder. Either attainder in this case was unnecessary and therefore improper, or it was resorted to for the purpose of bolstering up the judgment in an irregular trial. I have not discovered any evidence that Clarence was formally indicted, but he appears to have been arrested at Westminster, in the presence of the mayor and aldermen of the city of London, on a charge of treason made by the king himself in a verbose and not very dignified speech.1

“In the ensuing parliament Clarence was arraigned: the king, according to the continuator of the Croyland Chronicle, prosecuted in person: no one ventured to reply but the prisoner. (This last seems a somewhat unintelligent observation.) Certain persons were brought in by the crown, presumably as witnesses, but from their conduct at the trial many thought they were there to formulate accusations.2 Clarence denied the charges, but the bill of attainder was passed by the lords and commons and received the royal assent.3

“The Duke of Buckingham was appointed steward of England to pass sentence,4 but execution was for some little time delayed: it was, to be sure, only seemly that the king should exhibit some reluctance about putting his own brother to death.

“The commons finally paid a visit to the upper house and requested by their speaker that the matter might be brought to a conclusion.5 Shortly after, Clarence was done to death. The manner of his dying was never made public; but the story of the wine-butt has at least the merit of being strictly contemporary gossip.6”

1 Chron. Croyland, ed. Bohn, p.479

2 Ibid.

3 Rot. Parl., vol. vi, pp. 193-5

4 Patent Roll, 17 Ed. IV, pt. 2, m. 19

5 Chron. Croyland, ed. Bohn, p.480

6 Mentioned by Fabyan, ed. 1811, p. 666

“Drowned in Malvesay.” Chronicles of London, ed. Kingsford, p. 188.

So, now the questions. Was the attainder of George of Clarence, the brother between Edward IV and Richard III, improper/irregular enough to be questionable in law? Was the court packed with false witnesses? Did Edward have so little real evidence against George that he had to bend the rules? The king had his way back then, of course, but in the present day, could a good lawyer present a convincing case for a mistrial? George might still be attainted and condemned in a second trial, but Edward would have to take more care. And, who knows, he might even have second thoughts about committing fratricide.

And finally, if the original trial was sufficiently improper/irregular, and therefore not lawful, would it mean that Clarence’s son, Edward, Earl of Warwick, was the rightful and legal heir of Edward IV, not Richard, Duke of Gloucester?

I do not believe for a moment that Richard thought any such thing. He saw himself as the rightful king and acted accordingly. In good faith. But L.W. Vernon Harcourt has made me think.

Postscript 26th April 2017: I am adding this because it suggests to me that L.W. Harcourt Vernon is correct to question the legality of George’s trial, because the Commons thought so too. In Judicature in Parlement by Henry Elsyng, Clerk of the Parliaments, I found the following. (Apologies for the Latin, which I can only vaguely follow, but the paragraph that follows it more or less explains.

“Here let us examine, for what illegall proceeding the Commons required this cause to be herde agayne. The author says, none argued against the Duke but the Kinge. This the commons helde to be against Lawe, That the Kinge Himselfe shoulde enforce either Article or Testimonye against a delinquent in a Capitall cause: for yt is inconvenient, that He, whoe is to have the fortfeiture of lyfe, Landes and goods should be accuser, wyttness or Judge. The Commons were present at this Tryall, and considering of the Inconvenience herof, they retourned & made this request, ut supram.

“[1] The ‘book’ was Ingulph’s Chronicle and its continuations (B.L., Ms. Cotton Otho B. XIII). The editor is grateful to Colin Tite for this identification. This manuscript was severely burned in the fire of 1731. We now have available a text based on another manuscript of the Chronicle, formerly owned by Sir John Marsham. This text was included by William Fulman in Volume I of Rerum Anglicarum Scrip;torum Veterum, printed in 1684. The modern edition (Henry T. Riley, ed., Ingulph’s Chronicle and Its Continuations, 1908) is based upon it.”

I’m sure you’re right. Richard’s reaction was certainly wounded/heated enough to suggest the eventually rebellion was the final straw. We can only hope that more evidence turns up. Stranger things have happened.

I’ve never looked into Clarence’s trial, but in terms of attainder the purpose and use of this instrument developed and changed during the 15th century (I touched on it briefly in my book ‘Richard as Protector & Constable’). I would need to see Vernon Harcourt’s understanding of exactly what he thought was unlawful about Clarence’s attainder, since (as I understand it) the charges and supporting evidence included some that would be categorized as lèse majesté which, if the king so wished, could be punished as treason. It is notable that Edward IV chose the very public court of Parliament for this trial when he had alternative less public courts available, so clearly he wanted the world to be aware of the proceedings. Remember also that in Harcourt’s day it was assumed by historians that the Crowland Chronicle continuations were written by Chancellor Russell, and thus they were considered ex cathedra. We read them more critically nowadays. As a last word, I’m guessing that very few 15th-century legal processes would be upheld in a modern court. The key is that the law was entirely understood by the ruling classes of the day who were widely employed in administering it by way of commissions and local courts, and engaged in labouring juries for their own purposes: they – and particularly Clarence – went into these things with their eyes fully open. I humbly submit m’lord.

Interesting that George denied the charges. So far, all the books I have read seem to consider the charges as generally true. (I have not read Hicks’ biography of Clarence).
So far as I can make out, most charges were true, and George deserved death.

Did he? I’ve read the full text of the attainder as provided in JAH’s book about George, and it’s really weird – it consists of a combination of vague and unexplained general accusations that George had maliciously plotted against Edward – without any specifics listed, and a list of different specific things that in themselves, aren’t enough for a charge of treason. (One of them, for instance, was that he was trying to smuggle his son Edward to Ireland. So what if he was?)

It really seems like Edward IV used his royal authority to get his brother convicted in spite of a really weak case against him. It makes you wonder what was really going on.

I don’t deny that Edward IV laid the charges on thick and heavy to ensure he got a conviction, but the crimes constituting treason were very different in Edward IV’s reign from anything one might consider treason today. Few historians are familiar with them – you need to consult a legal specialist like J.G. Bellamy. I have summarized most of them in my book ‘Richard Duke of Gloucester as Lord Protector and High Constable of England’, where I commented as follows on Clarence’s trial: “Edward’s treason charges against his brother George, Duke of Clarence, accused him of plotting not only the destruction of the royal person, the queen and the heir, but also of ‘disherityng of the King and his Issue’, and planning to ‘subverte all the polityk rule of the Royaulme’.The addition of treason against ‘the realm’ as well as its prince had already been introduced by Richard II and employed enthusiastically by the Lancastrians.” [Footnoted to Bellamy, p.209.] Basically, such actions could be categorized as treason and charges brought if it was the king’s choice so to do, as it was in this case. The ‘list of charges’, by the way, is not the same as ‘the evidence’: clearly the king’s address to Parliament would have laid out all the supporting evidence together with the names of witnesses. That witnesses were not called to testify shows that Parliament was satisfied with the truth of the charges. The Rolls of Parliament were merely summaries of proceedings, not verbatim transcripts.

As to the question of what was really going on: Dominic Mancini stated three times in his De Occupatione that the queen’s family was behind the charges against Clarence because they saw him as a threat (cf. the charge ‘disherityng of the King and his Issue’). Mancini was not an authority on events in England, but he certainly made it clear what he had heard said about the matter.

I note that Vernon Harcourt was not quibbling with the verdict of treason, but rather with the nature of the attainder and the alleged lack of indictment (absence of evidence is not, however, evidence of absence). What is clear is that Edward IV brought the charges to Parliament and Parliament found Clarence guilty – so enthusiastically that they even sent the Speaker some weeks afterwards to enquire why sentence had not been carried out. I think this makes it pretty evident what Parliament’s view was.

I take the following quote from ajcarson’s comment above:- “Edward’s treason charges against his brother George, Duke of Clarence, accused him of plotting not only the destruction of the royal person, the queen and the heir, but also of ‘disherityng of the King and his Issue’, and planning to ‘subverte all the polityk rule of the Royaulme….’ It makes me think that behind it all, Edward was actually exercised by a dread of his marriage to Lady Eleanor Talbot being revealed. The Woodvilles would dread it too. We’ve long wondered if George knew about this skeleton in his brother’s cupboard. Although, at the same time, if George did know, why did he carry the knowledge to his death? Once he’d been condemned to death, he had nothing to lose by shouting it out to the world. Unless…maybe a desperate hope for forgiveness kept him silent?

… Yes, coupled with sheer disbelief that the king would go through with the shocking execution of his own brother (bearing in mind that Edward had forgiven him several times previously, and this time had to be prompted by Parliament). As long as there were no reports of visible signs that a beheading was being prepared, presumably Clarence still clung to the belief that Edward would issue a pardon, and as long as he believed this he would remain silent. Then one day the end came secretly and privately.

yes I agree with you . I always thought the private and secret execution of Clarence was suspicious as he would have had nothing to lose by revealing all in a speech from the scaffold. This would have been incredible revenge on the woodvilles.

Wouldn’t it just, and I’ll bet George was all geared up to do it. Edward clearly knew his brother a little too well. All it was all because as a young man, Edward just hadn’t been able to keep it in his codpiece! Poor George. And poor Richard. They both paid dearly because Edward IV chose to make a bigamous marriage to Elizabeth Woodville!